Action Transmittal AT-94-06 Responses Part 2

Paternity Establishment and Revision of CSE Audit Regulations

Response to Comments - Part 2
Hospital-Based Paternity Establishment Programs -- Sections 301.1,
302.70(a)(5)(iii)(A), 303.5(g) and (h), 304.20(b)(2), and 304.23(d)
a. General Requirement; State Law.
1. Comment: One commenter questioned whether hospital-based programs would be
effective, particularly since mothers of newborns stay in the hospital for
such a short period of time.
Response: Prior to the enactment of OBRA '93, about half of the States had
already developed hospital-based programs to obtain voluntary acknowledgments
of paternity (although often on less than a statewide basis). Even some
hospitals in States without proactive, organized programs have, for years,
accepted voluntary acknowledgments of paternity from maternity patients and
alleged fathers. Typically, in an organized program, trained hospital
employees provide information about paternity establishment to the parents,
inform them of their rights, and give the putative father the opportunity to
voluntarily acknowledge paternity. Such programs have been quite effective in
obtaining voluntary paternity acknowledgments; some hospital-based programs
have successfully obtained voluntary acknowledgments for about 40 percent of
their out-of-wedlock births. In developing these regulations, OCSE met with
officials from established hospital-based programs in several States.
The experience of States indicates a father of a child born to an unmarried
mother is more likely to be present and to admit paternity during the time
surrounding birth than later on. Early paternity establishment reduces
location difficulties and administrative costs which can occur if paternity
establishment is delayed. The earlier paternity is established, the sooner
the child will have access to the father's medical benefits, medical history
information, a legal relationship with the father, child support, and other
benefits resulting from paternity establishment.
To address the fact that mothers of newborns stay in the hospital only a short
period of time after birth, States and their hospital-based programs should
attempt to offer paternity acknowledgment services during peak hospital
visiting hours, which may be in the evening, to ensure that all unmarried
parents have the opportunity to voluntarily acknowledge paternity. In
addition, States are encouraged to provide information on the importance of
paternity establishment prior to the birth of the child (e.g., at prenatal
clinics and maternal and child health programs).
2. Comment: Some commenters expressed concern that the proposed January 1,
1995 effective date for statewide implementation of the hospital-based program
would be difficult to meet. One commenter suggested that OCSE provide
training and technical assistance to help States meet this deadline.
Commenters pointed out that in a few States the first legislative session
after enactment of OBRA '93 will be in 1995.
Response: With one adjustment, we are keeping the effective dates as
proposed. As required by the Federal statute, States must have laws,
regulations and/or binding procedures required under 302.70(a)(5)(iii)(A) in
place on October 1, 1993 (or if legislation is required, by the beginning of
the first calendar quarter after the close of the first regular session of the
State legislature that begins after August 10, 1993).
Under 303.5(g)(1), the hospital-based programs must be operational in
birthing hospitals statewide no later than January 1, 1995. Given the
increasing number of out-of-wedlock births, we believe Congress intended these
hospital-based programs to be implemented as quickly as possible, and we
cannot justify further delay. Depending on State circumstances, the January
1, 1995 effective date gives States over a full year after the Federal
mandate's effective date to gear-up to a statewide program. In the preamble
to the proposed rule (58 FR 62599, 62603), we encouraged States to begin
implementing their hospital-based programs immediately, even if a State law
had not yet passed, by contacting hospitals and appropriate agencies and
developing forms, written materials, and training procedures.
However, as commenters pointed out, OCSE cannot impose a regulatory effective
date that is stricter than the statutory one. Therefore, we have added the
phrase "unless Federal law governing the effective date gives the State
additional time" to the January 1, 1995 effective date at 303.5(g)(1). This
phrase only applies to States where: (1) the end of first regular legislative
session beginning after enactment of OBRA '93 (on August 10, 1993) occurs
after January 1, 1995, and (2) the State legislature needs to pass law
regarding the hospital-based program in order for the State to comply with
302.70(a)(5)(iii)(A). A State meeting these conditions will have until the
effective date contained in Federal statute to implement its hospital-based
program statewide. Such a State, however, must have both its law in place and
have its hospital-based program operational statewide by the Federal statutory
effective date. We encourage States to establish their hospital-based program
and mandate participation by birthing hospitals through regulation or
procedure with the full force and effect of law. However, if enabling State
legislation is necessary, the State can proceed with implementation planning
and arrangements concurrent with consideration of the legislation.
To facilitate the establishment of hospital-based programs, the IV-D agency
may enter into agreements or contracts with birthing hospitals or other State
agencies. (Some type of formal agreement is required in order to receive FFP
for $20 payments per acknowledgment; see discussion below). A State could
also contract with a private entity or organization to implement the
hospital-based program. For purposes of Title IV-D State plan requirements,
the State will still be liable for ensuring that the required process has been
implemented. We encourage the State to work closely with the State hospital
association; State staff who have implemented existing programs indicate the
hospital association was a key player in implementation.
OCSE is committed to continuing to provide technical assistance to help States
implement hospital-based programs quickly. To date, OCSE has sponsored a
well-attended national conference for State agency personnel, published and
disseminated "In-Hospital Paternity Establishment: A Resource Guide", and run
feature stories in its nationally disseminated periodical, the Child Support
Report, all of which addressed hospital-based program implementation issues.
3. Comment: Two commenters requested that the regulations include an
enforcement mechanism regarding the participation of birthing hospitals.
Response: The statute did not include a Federal enforcement mechanism
targeted directly at hospitals (such as a link to Medicaid or Medicare
funding), and OCSE does not have the authority to establish such a mechanism
by regulation.
However, a State must meet the hospital-based program requirement at
302.70(a)(5)(iii)(A) as a condition of IV-D State plan approval. Each
State's title IV-D plan must be approved for the State to receive Federal
financial participation in the operation of its Child Support Enforcement
program. At a minimum, new
302.70(a)(5)(iii)(A) requires State law, regulation, and/or binding procedure
to compel all public and private birthing hospitals to participate in
hospital-based programs as defined in 303.5(g)(2). At State option, State
law may include an enforcement mechanism for dealing with noncompliance by
hospitals.
4. Comment: In the proposed rule, we suggested defining "birthing hospital"
as a hospital that has a licensed obstetric care unit or is licensed to
provide obstetric services, or a licensed birthing center associated with a
hospital. One commenter argued that this proposed definition was too
restrictive and did not account for the variety of licensing procedures used
by States. According to the commenter, at least one State licenses hospitals
generally, not according to whether they provide birthing services.
Response: We have changed the definition of birthing hospital at 301.1 from
what was originally proposed. A birthing hospital is now defined as a
hospital that has an obstetric care unit or provides obstetric services, or a
birthing center associated with a hospital. If a State licenses hospitals
according to whether they have obstetric units or provide obstetric services,
or if a State licenses birthing centers, the State may use the list of
licensed entities to determine in which facilities hospital-based programs
should be established.
Since we do not believe programs should be mandated in hospitals (such as
geriatric hospitals) that do not provide maternity services, we have limited
the hospital-based program requirement to hospitals that either have an
obstetric care unit or that provide obstetric services. In the definition of
birthing hospital, we also include birthing centers associated with a
hospital. A birthing center is a facility physically located outside a
hospital that provides maternity services. Generally, such centers use
midwives and provide services for women who expect no complications during
birth. Frequently, a hospital will provide back-up services to a birthing
center if complications develop. Since in some localities, a significant
number of births occur in birthing centers, we believe voluntary
acknowledgment programs should be established in such centers that are
associated with hospitals.
5. Comment: One commenter asked how the Federal OCSE would monitor State
compliance with the hospital-based program requirements.
Response: Section 454(20) of the Act requires that the State
IV-D plan provide that the State shall have in effect all the laws required
under the mandatory procedures established in section 466 of the Act. Since
the requirements for hospital-based programs are part of the mandatory
procedures set forth in section 466, States must demonstrate conformity with
these requirements as a condition for having an approved State IV-D plan. As
a condition of State plan approval, States must have a law (or procedure,
rule, or regulation with the force of law) providing for a hospital-based
program and requiring that all public and private birthing hospitals
participate in the program in accordance with 302.70(a)(5)(iii)(A). In
addition, as part of the State plan approval process, States will be asked to
certify that hospital-based programs are operational in birthing hospitals
statewide no later than January 1, 1995 (unless Federal law governing the
effective date gives the State additional time) in accordance with
303.5(g)(1). States failing to demonstrate conformity with these
requirements will be subject to State plan disapproval procedures outlined in
OCSE-AT-86-21. Non-conformity could result in the suspension of all IV-D
funding as well as loss of a portion of title IV-A funding to the State.
b. Elements of a Hospital-Based Program.
1. Comment: Numerous commenters recommended that Federal hospital-based
program requirements include detailed and specific provisions regarding due
process safeguards and the explanation of rights and responsibilities. For
example, some commenters suggested federally-mandated training protocols, and
safeguards to protect the mother, particularly in cases involving domestic
violence.
Response: As discussed earlier in response to comments, although we agree
with the importance of affording due process and explaining rights and
responsibilities, we have tried to avoid overly prescriptive Federal
requirements that would unnecessarily disrupt or interfere with the operation
of existing, successfully-functioning programs.
However, OCSE is committed, within its available resources, to offering
technical assistance and "best practices" regarding forms, written materials,
and training procedures. Moreover, Federal requirements regarding
hospital-based requirements are somewhat more detailed than the general
voluntary acknowledgment requirements, due to the special conditions,
discussed earlier, surrounding hospital-based programs.
Under 303.5(g)(2)(i), a hospital-based program must provide to both the
mother and alleged father, if he is present in the hospital: (A) written
materials about paternity establishment, (B) the forms necessary to
voluntarily acknowledge paternity, (C) a written description of the rights and
responsibilities of acknowledging paternity, and (D) the opportunity to speak
with staff, either by telephone or in-person, who are trained to clarify
information and answer questions about paternity establishment.
The written materials about paternity establishment can be brochures,
pamphlets, or similar materials that describe the benefits of paternity
establishment and the consequences of a voluntary acknowledgment. Some States
have begun using informational films or videos, in addition to written
materials. The State may want to include a discussion of the potential impact
of an acknowledgment on custody, visitation, and adoption.
The description of rights and responsibilities may be a separate document or
be included on the other written materials or forms. However, we encourage
States to include the description on the form itself to serve as proof that
notice of the rights and responsibilities was provided in the event the
acknowledgment is later challenged. The description should list the rights
each party is conceding by signing the acknowledgment. It should also
describe the rights and responsibilities, including the duty to support the
child financially, that each party will assume as a result of signing the
acknowledgment. These rights and responsibilities will vary by State,
depending on State law.
In accordance with 303.5(g)(5), the State must provide the written materials,
written description of rights and responsibilities, and acknowledgment forms
to the birthing hospitals for distribution. The materials should be written
in clear, easily understandable terms. The State is responsible for ensuring
that birthing hospitals have an adequate supply of these items to distribute
to unmarried mothers and alleged fathers upon birth of a child. Hospitals
already distribute a variety of materials and forms to patients and can
incorporate paternity materials and forms into their existing distribution
procedures.
Under 303.5(g)(4), the State must require that a voluntary acknowledgment
obtained through a hospital-based program be signed by both parents, and that
the parents' signatures be authenticated by a notary or witness(es).
Therefore, an acknowledgment of paternity cannot be made in the hospital
unless both the mother and the alleged father agree to acknowledge the man's
paternity. The form used for acknowledging paternity in a hospital-based
program should contain lines for both parents' signatures and authentication
by a notary or witness(es).
Under 303.5(g)(2)(iii), a hospital-based program must also afford any
additional due process safeguards necessary under State law, court rulings,
and special circumstances. We encourage States to work with hospitals to
ensure that the voluntary aspect of the program is promoted and maintained.
Neither the mother nor the father should be pressured into signing
acknowledgments.
One way of ensuring that the process remains voluntary is through training of
appropriate personnel. Under 303.5(g)(6), the State must provide training,
guidance, and written instructions regarding voluntary acknowledgment of
paternity, as necessary to operate the hospital-based program. States may use
classroom sessions, written instructions or handbooks, audio or video tapes,
technical assistance provided via telephone, or other means to meet this
requirement. Regardless of the method or combination of approaches, the State
should ensure that staff, as they assume the responsibility, are instructed in
the operations of the program. One State with an existing program has
provided formal training every few years, while providing technical assistance
and guidance via telephone and written instructions to supplement the training
sessions. Another State is developing a videotape for training hospital-based
program staff. OCSE plans to share knowledge of materials and experiences
regarding training protocols and procedures.
Finally, we encourage States to consider other safeguards suggested by
commenters as a means of protecting women in cases potentially involving
domestic violence. These include training workers to recognize possible
domestic violence, and talking with the mother and alleged father separately
so that the mother can raise any concerns privately and discreetly.
2. Comment: Several commenters objected to the proposed requirement that a
hospital-based program provide to both the mother and alleged father, if he is
present in the hospital, the opportunity, prior to discharge from the
hospital, to speak with staff, either by telephone or in person, who are
trained to clarify information and answer questions about paternity
establishment. The commenters suggested that, since mothers usually stay in
the hospital only a short time after birth and the alleged father may only
appear briefly at the hospital, it is unrealistic to expect hospital or IV-D
workers to be able to talk with all parents about paternity establishment
prior to discharge, particularly during weekend or evening hours. Some
commenters also expressed concerns about the ability and propriety of hospital
workers to respond to complex legal questions.
Response: In response to commenters, we have not included the phrase "prior
to discharge" in the final requirement at
303.5(g)(2)(i)(D). Therefore, a hospital-based program must give parents an
opportunity to talk with staff, but not necessarily prior to discharge. The
staff could either be hospital staff (e.g., medical social workers, medical
records technicians, or medical provider staff), IV-D, or other agency staff.
Most existing programs use hospital staff.
To meet this requirement, a hospital-based program must: (1) have staff in
the hospital to talk with parents in person, or (2) provide written materials
with a telephone number for State agency (IV-D or other agency) personnel that
the parties may contact for additional information. A hospital-based program
may utilize both of these approaches.
We encourage hospital-based programs to have staff in the hospitals available
to talk with the parties in person. Each program should make staff available,
especially during evening and weekend visiting hours, to ensure that all
unmarried mothers and alleged fathers present at the hospital are afforded an
opportunity to acknowledge paternity. Notaries public or witnesses
(designated hospital staff in some ongoing programs), as required under State
law, should also be available to authenticate acknowledgments in the hospital.
Staff can answer simple questions and assist parents in completing the forms.
However, as commenters pointed out, hospital staff may not be able to answer
legal questions regarding paternity establishment. In fact, at least one
existing hospital-based program advises program staff not to answer legal
questions; instead, the parents are given the telephone number of a State
agency to contact. A hospital-based program may also want to advise parents
that, if they have such questions, they should contact a legal services agency
or an attorney.
Some parents may not be able to reach State agency personnel via telephone, or
may not decide to acknowledge, until after discharge from the hospital.
Therefore, we recommend that acknowledgment forms include clear instructions
that allow the parents to complete and mail an acknowledgment some time after
leaving the hospital.
3. Comment: Numerous commenters requested clarification regarding whether a
hospital-based program must seek a voluntary acknowledgment prior to the birth
of a child.
Response: Regulations at 302.70(a)(5)(iii)(A) and 303.5(g) require
hospital-based programs for the voluntary acknowledgment of paternity during
the period immediately before or after the birth of a child to an unmarried
woman in the hospital. The phrase "during the period immediately before or
after the birth of a child" comes from section 466(a)(5)(C) of the statute.
These provisions do not require a hospital-based program to seek a voluntary
acknowledgment prior to the birth of a child. A hospital-based program should
not seek a completed acknowledgment prior to birth unless State law recognizes
the validity of pre-birth acknowledgments.
However, regardless of whether a State's law recognizes pre-birth
acknowledgments, the period prior to birth offers an opportunity to inform
both parents about the value of paternity establishment and their rights and
responsibilities. Several States have developed outreach programs in prenatal
clinics and other facilities. These programs give parents the time and
knowledge to make an informed decision, particularly since most mothers only
stay a short period of time in the hospital after giving birth.
4. Comment: Several commenters suggested that genetic testing be required for
all newborns as a means of determining or confirming their parentage and
preventing fraudulent acknowledgments of paternity. Other commenters
recommended expanding the role of hospital-based programs to include voluntary
genetic testing services.
Response: We are not requiring genetic testing for all births as a means of
preventing fraudulent acknowledgments. Under
303.5(g)(4), a State must require that a voluntary acknowledgment obtained
through a hospital-based program be signed by both parents, and that the
parents' signatures be authenticated by a notary or witness(es). We believe
the number of cases where both parties would be willing to make a false claim
of paternity is very small. Furthermore, the cost of providing genetic
testing as a condition of acknowledging paternity in all cases would be
significant. Fraudulent acknowledgments could be challenged in court where
genetic tests could, of course, be ordered.
Furthermore, we are not requiring hospital-based programs to offer the option
of genetic testing as part of hospital-based programs. The statutory
requirement for hospital-based programs does not include genetic testing, and
we believe that imposing additional requirements will make statewide
compliance by January 1, 1995 more difficult.
Although not a requirement, we encourage States to incorporate the opportunity
for genetic testing into their hospital-based programs. A readily available
testing capability may persuade additional fathers to voluntarily acknowledge
or expeditiously resolve any doubts as to paternity. A few States have begun
to offer genetic testing in hospitals. Another State routinely obtains
stipulations in the hospital where both parties agree to undergo genetic
testing at a later date.
c. Withholding Services in Some Cases.
1. Comment: Several commenters suggested that a hospital-based program should
not have to provide services in cases where the mother is considering adoption
(even though an adoption is not yet pending) or is otherwise reluctant to
acknowledge the man's paternity.
Response: We have retained the requirement at 303.5(g)(3) as proposed.
This allows a hospital-based program to withhold services related to
acknowledging paternity, when necessitated by State law, in cases where the
mother or alleged father is a minor or a legal action (e.g., relinquishment of
parental rights for purposes of adoption) is already pending. Some States may
have laws which prohibit voluntary acknowledgments of paternity by minors, or
the State may want hospital-based personnel to avoid interference in cases
where a legal action is pending. Therefore, the hospital-based program is not
required to provide services to the mother and alleged father in such cases,
if provision of services is prohibited by State law. However, the services
listed in 303.5(g)(2) should be provided to other unmarried parents.
Certainly, if a mother is considering adoption (but action is not yet pending)
or, for some other reason, does not want to acknowledge the man's paternity,
she may decline to sign the voluntary acknowledgment. The in-hospital process
is entirely voluntary, and an acknowledgment obtained through a hospital-based
program requires the signatures of both parents. If the mother does not wish
to participate and declines to identify the father, no further action is
required on the part of the hospital.
2. Comment: One commenter asked how the hospital will find out that
circumstances in a particular situation permit paternity acknowledgment
services to be withheld.
Response: Generally, hospitals will be able to obtain this information from
the patient (if an adoption is pending) or from hospital records (if a
termination of parental rights or other proceeding is pending). In other
cases, hospitals may only learn of the circumstances after talking with both
the mother and alleged father (e.g., if he is a minor).
3. Comment: Commenters asked if a hospital-based program must provide
services in cases where the parents are not residents of the State, or in
cases involving illegal aliens.
Response: An individual's residency or citizenship status may not be a basis
for excluding the person from an opportunity to acknowledge paternity. A
hospital-based program must provide services to unmarried parents regardless
of whether they are nonresidents or illegal aliens. Paternity establishment
is a service in the best interest of the child and the residency or
citizenship status of the parents does not reduce the child's interest in
having legal paternity established.
d. Annual Assessment.
1. Comment: Several commenters objected to the proposed requirement mandating
an annual assessment of each birthing hospital's program. Commenters
suggested the requirement was overly burdensome, was not necessary to
determine a program's effectiveness, and would require data that are not
readily available. Other commenters suggested that the intent and
requirements of the provision needed clarification.
Response: We retained the assessment requirement in the final regulation.
States must assess each birthing hospital's program on at least an annual
basis. It is essential that a State not only establish hospital-based program
procedures, but also follow-up to determine if such procedures are working.
The intent of this requirement is not to establish performance quotas or to
create pressure for hospitals to obtain acknowledgments, but rather to ensure
that hospitals are actually operating programs. Staff turnover among hospital
personnel or a depleted supply of forms or materials may disrupt or even
suspend a hospital-based program's operation. The annual assessment will
allow the State to detect whether such problems occur, and to take appropriate
action (periodic staff training, regularly supplying new forms) to prevent
them.
The annual assessment requirement does not mandate a formal investigation or
audit. Rather, it simply requires States to examine data which, in most
States, should be available without the need for a special data collection.
At a minimum, the annual assessment must examine the number of acknowledgments
received from each hospital. If the State makes payments to the birthing
hospitals for each voluntary acknowledgment obtained, it should already have
access to data regarding the number of acknowledgments per hospital. We
encourage the State to consider the number of acknowledgments as a percentage
of the number of out-of wedlock births during the same period at each
hospital, if data regarding births are available. This percentage will
provide a more accurate measure of a hospital-based program's operation. Data
regarding the number of out-of-wedlock births per hospital are already
collected by vital statistics agencies in some States.
If the number of acknowledgments received from a hospital seems unusually low
or has declined significantly from the number received in the past, the State
should contact the hospital to determine whether training or other assistance
is needed.
e. Forwarding and Recording Acknowledgments.
1. Comment: We received numerous comments regarding the proposal to require
procedures for filing voluntary acknowledgments with either the State IV-D
agency or a centralized State agency that provides the State IV-D agency
access to copies of, and identifying information on, the acknowledgments. The
proposed rule also would have required the IV-D agency, in IV-D cases needing
paternity establishment, to determine if a voluntary acknowledgment had been
filed with the agency designated by the State.
Many commenters suggested that, while a central database of information
regarding acknowledgments might be useful, there is little, if any, benefit in
requiring States to file actual copies of acknowledgments with a central
entity. Actual copies may be needed at the local level by a court or agency,
but not at the central or State level, during support order establishment or
other proceedings. The commenters explained that many States already have
procedures for filing acknowledgments with a local court or agency.
One commenter suggested that we require all voluntary acknowledgments, not
just those obtained through hospital-based programs, to be filed with a
central entity.
Response: We have significantly revised this requirement in light of comments
to the proposed rule. The final regulation, at 303.5(g)(2)(iv) requires a
hospital-based program to forward completed acknowledgments or copies to the
entity designated under 303.5(g)(8). Section 303.5(g)(8) requires the State
to designate an entity to which hospital-based programs must forward completed
voluntary acknowledgments or copies. Under State procedures, this entity must
be responsible for promptly recording identifying information about the
acknowledgments with a statewide database, and the IV-D agency must have
timely access to whatever identifying information and documentation it needs
to determine in accordance with 303.5(h) if an acknowledgment has been
recorded and to seek a support order on the basis of a recorded acknowledgment
in accordance with 303.4(f).
A State's procedures may provide for forwarding acknowledgments or copies to
any entity designated by the State--a local court or agency, the vital
statistics agency, the IV-D agency, or some other entity. We are not, as one
commenter suggested, requiring the designated entity to be the State's vital
statistics agency; we want to avoid unnecessary interference with States'
previously-established procedures. A State can have more than one designated
entity. The designated entity is responsible for recording identifying
information about the acknowledgments with a statewide database (or,
alternatively, for forwarding the acknowledgments or identifying information
to another entity responsible for recording the identifying information with
the statewide database). No matter what entity a State designates, the
information should be recorded promptly so that necessary information and
documentation will be readily available to the IV-D agency.
The State must have one centralized, statewide database, which may be
automated at State option, that contains identifying information about
acknowledgments. The identifying information must be maintained in one
automated database (if automated) or one central location (if not automated).
The database may be established and maintained by the State IV-D agency, some
other State agency, or a contractor under agreement with a State agency. If a
State's database is maintained by the IV-D agency, we encourage the IV-D
agency to incorporate the database into its statewide computerized support
enforcement system. The database may be maintained by an agency other than
the designated entity, as long as the designated entity records (or forwards
to another entity for recording) with the statewide database identifying
information about acknowledgments forwarded to the entity. The State may, at
State option, develop procedures for filing or recording actual copies of
acknowledgments, in addition to identifying information, in a statewide
database.
As with the proposed rule (58 FR 62599, 62601), the requirement for forwarding
acknowledgments or copies is limited to hospital-based programs. (To clarify
the applicability of this requirement, we are including it in the
hospital-based program section at 303.5(g) rather than in 302.70 as
proposed). We do not have authority to mandate that persons or entities in
non-IV-D cases (except for hospital-based programs, which are required as a
condition of IV-D State plan approval) adhere to these procedures.
Forwarding/recording procedures are not necessary to link IV-D cases with
acknowledgments obtained through the IV-D program, since the IV-D agency is
already aware of such acknowledgments. However, for purposes of uniformity
and centralized access, we strongly encourage States to expand their statewide
databases to include identifying information on voluntary acknowledgments
obtained from sources other than hospital-based programs. At State option,
procedures for forwarding acknowledgments to the designated entity may be made
available to any party who wishes to use the procedures. States may want to
include instructions for forwarding the acknowledgment on the acknowledgment
form itself. If a State's vital statistics agency (or similar agency
responsible for birth registration) is the designated entity or maintains the
statewide database of identifying information, the State may choose to link
these forwarding/recording instructions with instructions for adding the
father's name to the birth certificate.
The purpose of these procedures is to ensure that the IV-D agency has a source
for determining, in a IV-D case needing paternity establishment, whether or
not an acknowledgment was obtained outside the IV-D system (e.g., at the
hospital). The IV-D agency should use such previously-obtained
acknowledgments of paternity as the basis for establishing and enforcing a
child support order.
To ensure that voluntary acknowledgments are used in IV-D case processing,
303.5(h) compels each IV-D agency to determine, in cases needing paternity
establishment, if identifying information about a voluntary acknowledgment has
been recorded in the statewide database mandated by 303.5(g)(8). Once a
IV-D agency matches a case with a voluntary acknowledgment recorded in the
statewide database, it must then use that acknowledgment to seek a support
order in IV-D cases.
When attempting to determine if a voluntary acknowledgment of paternity has
previously been completed in a IV-D case needing paternity establishment, we
encourage the IV-D agency to first ask the custodial parent whether the
alleged father voluntarily acknowledged paternity at the hospital or at some
other time. However, unless the custodial parent is able to provide a copy of
the acknowledgment, asking the custodial parent, by itself, does not satisfy
the requirement at 303.5(h) under which the IV-D agency must determine if an
acknowledgment has been recorded with the statewide database. A recent
evaluation of one city's hospital-based program found that, in IV-D cases
where a voluntary acknowledgment had previously been obtained at the hospital,
the IV-D agency was not aware of the acknowledgment in about half of the
cases. Custodial parents may be unable or unwilling to tell the IV-D agency
about a voluntary acknowledgment previously obtained in the hospital.
Therefore, a State must have some other means, either automated or manual, for
checking the records of the statewide database to determine if identifying
information about an acknowledgment has been recorded with the statewide
database. Although we encourage use of automated matching, we are not
requiring such since the records of a State's designated entity may not be
automated and we are not providing Federal financial participation for the
development of a computer system for the designated entity. Regardless of
whether the State uses an automated or manual process, the IV-D agency must
have access to up-to-date information.
A IV-D agency does not need to determine if a voluntary acknowledgment has
been recorded with the statewide database in a case where the IV-D agency:
(1) is already aware that an acknowledgment has been completed and has
documentation necessary to seek a support order on the basis of that
acknowledgment; (2) knows that it is unlikely that an acknowledgment is
recorded with the statewide database (e.g., the child's birth certificate
indicates that the child was born in another State); or (3) does not have
sufficient information to make a determination. In a case where a child was
born in another State, the IV-D agency may check with the other State to
determine if identifying information about an acknowledgment has been
recorded. With respect to situations where sufficient information is lacking,
we encourage the IV-D agency to search for an acknowledgment under the child's
name if the custodial parent fails to provide the name of an alleged father.
Failure of the custodial parent to provide the name of an alleged father is
not a sufficient basis, by itself, for deciding not to determine if an
acknowledgment has been recorded.
Under State procedures, the IV-D agency must have timely access to whatever
identifying information and documentation it needs, in a IV-D case, to
determine in accordance with 303.5(h) if an acknowledgment has been recorded
in the statewide database and to seek a child support order on the basis of a
recorded acknowledgment in accordance with 303.4(f). This identifying
information must include sufficient information to enable the
IV-D agency to determine if an acknowledgment recorded in the statewide
database matches a IV-D case needing paternity establishment--for example,
names and social security numbers.
Concerning documentation, in some States, the IV-D agency may need the
original acknowledgment or an authenticated copy in order to establish a
support order on the basis of the recorded acknowledgment. If this is the
case, in order to satisfy 303.5(g)(8), under which the IV-D agency must have
timely access to necessary information and documentation, the State may need
procedures under which some entity [perhaps the entity designated to receive
acknowledgments or copies from hospital-based programs under 303.5(g)(8)]
maintains acknowledgments and gives the IV-D agency access to acknowledgments
or copies. Identifying information in the statewide database should indicate
the location where an acknowledgment or copy is maintained, if such
information is necessary.
If necessary, the IV-D agency should enter into agreements with: (1) the
agency responsible for maintaining the statewide database (in order to obtain
identifying information about acknowledgments recorded in the database), and
(2) the entity that maintains the acknowledgments (in order to obtain
authenticated copies). If allowable under State law, a State may also choose
to give other agencies, besides the IV-D agency, access to the statewide
database (e.g., agencies which need the records to establish benefit claims,
such as Social Security).
2. Comment: Several commenters requested that Federal financial
participation (FFP) be available for costs associated with filing copies of
acknowledgments with entities such as vital statistics agencies. One
commenter asked whether 90 percent enhanced funding would be available for
automated systems changes associated with filing procedures.
Response: FFP is available for three related costs. First, under
304.20(b)(2)(i), which allows FFP for costs associated with reasonable
efforts to determine the identity of a child's father, FFP is available for
the IV-D agency's costs in determining, in accordance with 303.5(h), whether
a voluntary acknowledgment has been recorded with the statewide database in
IV-D cases needing paternity establishment. Second, FFP is available for
reasonable and necessary costs, including fees, incurred by the IV-D agency in
obtaining copies from an entity of documents such as voluntary acknowledgments
or birth certificates. Third, FFP is available, under previously-existing
policy, for the IV-D agency's costs incurred under an agreement, including the
IV-D agency's costs of establishing an agreement, governing the routine
exchange of information or documents regarding acknowledgments, between the
IV-D agency and the designated entity [required by 303.5(g)(8)], the agency
that maintains the statewide database, or any entity that gives the IV-D
agency access to copies of acknowledgments (if such an agreement is
necessary).
However, FFP is not available for the costs of establishing, maintaining, or
operating the designated entity [required under
303.5(g)(8)] or any entity where copies of acknowledgments are filed or
maintained, unless that entity is the IV-D agency. Similarly, FFP is not
available for the costs of establishing, maintaining, or operating the
statewide database of identifying information about voluntary acknowledgments,
unless the agency that maintains that database is the IV-D agency.
In addition, if a State needs to make changes to its IV-D statewide automated
system in order to accommodate these new voluntary acknowledgment requirements
(or other requirements in this rule), enhanced FFP is available for automated
systems until September 30, 1995. If changes are required after that date,
regular FFP is available.
3. Comment: We received several comments urging us to require that the State
add the father's name to the child's birth certificate once the father
acknowledges paternity.
Response: Although we encourage such procedures and encourage States to
consider any changes in law or procedure to facilitate this outcome as part of
their implementation of OBRA '93 requirements, we have no authority to
regulate State birth registration procedures. If a State chooses its vital
statistics agency (or similar agency responsible for birth registration) as
the designated entity or the agency responsible for its statewide database of
identifying information on acknowledgments [required under 303.5(g)(8)], the
State may want to link the forwarding/recording process with procedures for
including the father's name on the birth certificate if an acknowledgment is
sufficient basis for including the father's name on the certificate under
State law. If a State's acknowledgment form includes the social security
numbers of the parents, the recording of voluntary acknowledgments with a
vital statistics agency may also be a way of obtaining social security numbers
from parents as required during the birth registration process by section
205(c)(2)(C)(ii) of the Social Security Act.
4. Comment: Some commenters requested that we prohibit filing agencies (such
as vital statistics agencies or courts) from charging the State IV-D agency or
IV-D agencies in other States fees for obtaining copies of voluntary
acknowledgments or other records.
Response: We do not have the authority to issue regulations forbidding State
entities from charging fees for records. However, as mentioned above, Federal
financial participation is available for reasonable and necessary costs,
including fees, incurred by the IV-D agency in obtaining from an entity copies
of documents such as voluntary acknowledgments or birth certificates.
5. Comment: One commenter suggested that we mandate a system for officially
recording and documenting genetic test results which create a presumption of
paternity.
Response: We do not think such a system is necessary. Most genetic testing
takes place in the context of ongoing action to establish paternity. Once
genetic test results either exclude an alleged father, create a presumption of
paternity, or reflect inclusionary findings not rising to the level of a
presumption, the action will move to the next step in the process. By
contrast, a database of voluntary acknowledgments is needed since a large
number of acknowledgments are obtained outside of an ongoing paternity/support
order establishment process (e.g., in hospital-based programs).
f. FFP Availability for Hospital-Based Programs.
1. Comment: Numerous commenters requested that Federal financial
participation (FFP) for hospital-based programs be expanded to cover
additional costs, including the costs of hospital staff; travel for hospital
staff attending training sessions; notaries; and other operating costs. Other
commenters suggested that FFP availability should be extended to schools, WIC
agencies, town clerks, and other agencies that might provide voluntary
acknowledgment services.
Response: FFP is available for certain costs associated with hospital-based
programs. First, under previously-existing
policy, FFP is available for the IV-D agency's costs incurred under necessary
agreements between the IV-D agency and birthing hospitals or other State
agencies, including the IV-D agency's costs of establishing such agreements.
Second, FFP is available for IV-D staff that work on developing and
implementing (e.g., training, drafting materials, meeting with hospital
officials) the hospital-based program.
Third, under new 304.20(b)(2)(vi), FFP is available for payments of $20 or
less actually made to birthing hospitals for each voluntary acknowledgment
obtained through a hospital-based program as defined by 303.5(g)(2). Several
States have found such payments to be successful in obtaining the cooperation
of hospitals. The $20 per voluntary acknowledgment is also available for
voluntary acknowledgments obtained in other entities that provide prenatal or
birthing services. In order for payments to be eligible for FFP, the birthing
hospital or other entity must, however, have a formal agreement with the IV-D
agency. States are not required to provide payments to hospitals.
Fourth, 304.20(b)(2)(vii) makes FFP available for the costs of developing and
providing to birthing hospitals and other entities that provide prenatal or
birthing services written and audiovisual materials about paternity
establishment and forms necessary to voluntarily acknowledge paternity.
Finally, 304.20(b)(2)(viii) makes FFP available for reasonable and essential
short-term training regarding voluntary acknowledgment of paternity associated
with a State's hospital-based program as defined by 303.5(g)(2). Although
the training must be short-term in order to be eligible for FFP, training may
be provided on a periodic basis, as suggested by one commenter. This rule
also modifies 304.23(d), which limits the availability of FFP for training to
specific circumstances, to allow for FFP as provided for in
304.20(b)(2)(viii). Consistent with existing policy which allows FFP for the
cost of judge's travel to attend training not associated with the judicial
determination process, FFP would be available for the cost of hospital
personnel's travel to attend reasonable and essential short-term training
sessions regarding the hospital-based program.
We encourage, but do not require, States to extend their hospital-based
programs beyond birthing hospitals to clinics, health departments, and other
facilities. Since a mother's stay in a hospital after giving birth is
relatively short, parents may benefit from receiving information about
paternity establishment before birth, in prenatal clinics for example. To
encourage the expansion of early paternity establishment programs beyond
hospitals, FFP is available for developing and providing materials about
paternity establishment and forms necessary to acknowledge, not only to
hospitals, but to other entities that provide prenatal or birthing services.
Similarly, FFP is available for payments of $20 or less, not only to birthing
hospitals, but to other entities that provide prenatal or birthing services
and obtain a voluntary acknowledgment pursuant to a written agreement with the
IV-D agency.
However, FFP is not available for other costs, including hospital operational
and staff costs. We are not providing FFP for costs associated with voluntary
acknowledgment services provided by schools, WIC agencies, town clerks, or
other such entities. Except in limited and clearly defined circumstances as
already enunciated, we do not believe the IV-D program should finance costs of
hospitals, health care providers, vital statistics agencies, or public
educational programs. As previously stated, FFP is available for payments of
up to $20 per acknowledgment to birthing hospitals (and other providers of
prenatal and birthing services who obtain acknowledgments). These hospitals
may spend this money any way they choose--to pay for notaries, hospital staff,
or other costs.
FFP is available for the costs of developing and providing materials and forms
as well as for the costs of training, as described above, regardless of
whether these services are provided through a contractor or directly by the
State. If an entity or organization other than the IV-D agency develops or
distributes the paternity establishment materials, provides nominal payments
per acknowledgment, or provides training to hospital-based program staff, that
entity must have a written agreement with the IV-D agency in order for the
State to receive FFP for these activities.
2. Comment: One commenter asked whether the availability of FFP for payments
of up to $20 per acknowledgment was contingent upon the establishment of an
agreement between the IV-D agency and the birthing facility receiving the
payment.
Response: Yes, a written agreement is necessary. To clarify this, we have
added the phrase "pursuant to an agreement with the IV-D agency" to the
regulatory provision at 304.20(b)(2)(vi) allowing FFP for such payments.